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Legal Issues for LGBT Caregivers

Legal Issues for LGBT Caregivers

Introduction

For lesbian, gay, bisexual and transgender (LGBT) people, certain legal and financial decisions become increasingly important as they age. These determine who has the responsibility to provide care, the power to make medical decisions, and the legal authority to utilize financial resources on someone's behalf if he or she is incapacitated.

LGBT couples should draw up advance directives in order to guarantee their rights, even if they are legally married. While, in some places, same-sex couples may obtain legal recognition of their relationships through marriage (such as in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia) and broad domestic partnership and civil union laws (such as in New Jersey, Illinois, Delaware, Hawaii, California, Oregon, Washington State, and Nevada), most states still do not recognize these relationships, nor does the federal government. All LGBT couples must clearly articulate their desires in legal documents to protect their right and wish to care for one another, leave property and possessions to one another through a will, or make funeral arrangements on the other's behalf.

More than heterosexual aging adults, many LGBT people turn to their "family of choice" for caregiving needs. Chosen families are trusted and valued friends who provide emotional and social support to one another. Without written protections in place, these relationships might not be legally recognized, and could easily be questioned or contested by a biological family member.

As a caregiver to a spouse, partner or friend, it is essential to discuss available legal protections and their limitations with the person for whom you care before that person becomes incapacitated. Please note that laws affecting LGBT care differ greatly from state to state—and even from city to city'so it is best to work with an attorney when putting together advance directives and other legal documents. For help finding an LGBT-friendly attorney in your area, contact the Legal Information Helpline of the National Center for Lesbian Rights. (See the Resources section of this fact sheet.)

Creating an Estate Plan

For his or her own protection and for yours, estate planning is an absolute necessity for the person for whom you provide care. Every LGBT person should have these documents in place, but this is especially true for partnered LGBT people where illness has been identified or if a person is advancing in age and infirmities. Estate planning documents to have in place include:

A will is a legal document that allows you to designate who will receive your property when you die, and how and when they will receive it. If there is not a properly executed will when a person dies, the laws of intestacy in the state in which he or she lives determine who gets everything unless there is a named beneficiary (i.e., on life insurance or an IRA), or if he or she held the property in joint tenancy (i.e., a home or bank account), or in trust (bonds or a bank account).

A same-sex partner or a friend not named as a beneficiary in a will, or as a joint tenant on a property deed or in trust, could find all the property belonging to the deceased going to his or her children, parents, siblings or other family members, or even to the state. This result is easily avoided with a properly written will.

If an LGBT person has a minor child who has not been adopted by the same-sex partner, it is imperative that he or she execute a will. Wills are the only form of testamentary document in which a guardian for a minor child may be nominated, where a testator may leave instructions about the child's education, place of residence, and what can be done in the event of a child's illness. The guardian will still have to be appointed by court order.

Another type of legal document that LGBT people receiving and giving care may want to consider is a trust. Like a will, a trust provides for an orderly distribution to beneficiaries of a person's assets upon death. A trust also has incapacity language in it, which may become effective before death. Should a trustor become unable for whatever reason or however long to properly manage his/her estate, a named successor trustee may step in and exercise those powers enumerated in the trust. It is a good idea to ask an attorney to compare trusts and wills to help you decide the most effective document for carrying out your wishes.

A Durable Power of Attorney for Property and Finances will ensure that if a person becomes legally incapacitated, the designated agent will be able to manage all property and financial affairs. For LGBT care receivers and caregivers the Durable Power of Attorney for Property and Finances is a very powerful document. Without this documentation, an LGBT partner or friend will find it is very difficult, if not impossible, to take care of important legal and financial transactions when a loved one is incapacitated.

Never rely on a pre-packaged trust bought on the internet or in a commercial publication. To protect yourself, it is essential that you consult a knowledgeable attorney who is familiar with the law in your state.

An Advance Health Care Directive (in California) or a Durable Power of Attorney for Health Care (so named in most other states) ensures that all healthcare needs and desires are carried out and monitored by a trusted person—the agent or attorney-in-fact—when the principal can no longer make those decisions or communicate them to healthcare providers. This document contains the instructions regarding a care recipient's wishes and desires for healthcare, including what treatment is not desired, such as a Do Not Resuscitate (DNR) order.

If the person for whom you care already has some or all of these documents drawn up, make sure they are up to date (current with state law, all assets are covered, proper beneficiaries are named, etc.) and complete. He or she should also review deeds to houses and other property, insurance policies and financial accounts to determine if the beneficiaries listed are up to date. If you are spouses or domestic partners, creating and executing living-together and property agreements may also be desirable or practical at this time. An attorney working with you will be able to advise you or offer you the proper source of information.

Other components of an estate plan may include long-term care insurance with coverage for both in-home and nursing home care, and disability insurance. Ask the person for whom you care if he or she intends to use either of these to pay for care.

Two important matters for LGBT couples should be considered in estate planning. The first is Social Security, SSI (Supplemental Security Income) or Social Security Disability death benefits. Although not currently extended to LGBT couples, advocacy efforts are underway to make LGBT couples eligible for these resources.

Second, even if a home is properly willed to a survivor or held in joint tenancy, LGBT partners do not have exemption from reassessment of property taxes at death. The IRS presumes that the first person to die owned all of the jointly held property. The survivor has the task of presenting years of receipts and tax returns showing the property was jointly owned. What can be even more damaging is that the passage of property from a joint tenancy to a sole owner is considered a change of ownership and triggers a property tax reassessment that could result in taxes beyond the survivor's ability to pay. It may be advisable to think seriously about investing in life insurance that could provide liquidity and assets to pay for increased property tax.

Will

Living Trust

Durable Power of Attorney for Property and Finances

Advance Health Care Directive or Durable Power of Attorney for Health Care

Medicaid and Medi-Cal

Medicare nor regular health insurance pays for ongoing custodial care provided in a skilled nursing facility or nursing home beyond specific short-term rehabilitation coverage . Care must be paid privately from a person's assets, through private long-term care insurance policies or by Medicaid (Medi-Cal in California). There are two major areas of concern caregivers should be aware of:

Medicaid eligibility regulations.

Regulations controlling the recovery of monies paid out by Medicaid from the estate of the deceased recipient.

Medicaid has very complex rules, which vary from state to state. LGBT caregivers should consult with an elder law attorney who is sensitive and knowledgeable about Medicaid (Medi-Cal) regulations to determine how best to protect a home, savings and any additional assets and property.

To find an elder law attorney, first ask friends in similar circumstances if they have worked with someone. LGBT groups or organizations in your area—especially LGBT senior organizations—may also be able to provide referrals. You may also consider asking an estate planning attorney whom you know or have been referred to if they regularly work with someone on elder law issues. You may also contact the National Academy of Elder Law Attorneys at www.naela.org

Other legal tools

Outside of the estate planning documents described above, you may also wish to consider asking your loved one to complete the following:

Living Will - A Living Will gives instructions for treatment and allows people to specify which life-sustaining actions should be taken in the event they can no longer make decisions or express their desires.

Funeral Directive - Like other directives, a Funeral Directive will make sure your loved one's wishes are respected. If those wishes are not recorded in a legal document, the law may default to allow "next of kin" to make decisions for him or her after death. If you are legal LGBT spouses or registered domestic partners, your ability to make decisions will probably be respected, but documenting who should be in charge and what the arrangements should look like can prevent conflict. For more information, see Lambda Legal's "Tools for Protecting Your Wishes for Your Funeral."

Hospital Visitation Directive - A Hospital Visitation Directive designates who may or may not visit someone in the hospital. Sometimes covered in the Durable Power of Attorney for Health Care or Advance Health Directive, it is best for LGBT patients to prepare a separate document clearly stating their desires. In 2010, President Obama issued a federal mandate guaranteeing visitation rights to LGBT domestic partners and families of choice in hospitals and care facilities receiving support from Medicare and Medicaid (virtually all facilities).

RESOURCES

Family Caregiver Alliance 785 Market Street, Suite 750 San Francisco, CA 94103 (800) 445-8106, (415) 434-3388 caregiver.orginfo@caregiver.org Family Caregiver Alliance (FCA) seeks to improve the quality of life for caregivers through education, services, research and advocacy. Through its National Center on Caregiving, FCA offers information on current social, public policy and caregiving issues and provides assistance in the development of public and private programs for caregivers. For residents of the greater San Francisco Bay Area, FCA provides direct support services for caregivers of those with Alzheimer's disease, stroke, head injury, Parkinson's and other debilitating disorders that strike adults.

National Center for Lesbian Rights (NCLR) 870 Market St., Suite 370 San Francisco, CA 94102 (415) 392-6257www.nclrights.org Founded in 1977 and headquartered in San Francisco with offices in Washington, DC and St. Petersburg, FL, NCLR is a national lesbian, feminist, nonprofit law firm. NCLR gains and protects the legal and human rights of lesbians, gay men and bisexual and transgender people across the United States through impact litigation, public policy advocacy, public education and direct legal services.

Transgender Law Center 870 Market Street, Room 400 San Francisco, CA 94102 (415) 865-0176www.transgenderlawcenter.org The Transgender Law Center (TLC) is a civil rights organization advocating for transgender communities. TLC connects transgender people and their families to technically and culturally competent legal services, increases acceptance and enforcement of laws and policies that support California's transgender communities, and works to change laws and systems that fail to incorporate the needs and experiences of transgender people.

Bay Area Lawyers for Individual Freedom 1800 Market St., Box #47 San Francisco, CA 94102 (415) 865-5620www.BALIF.org BALIF is a Minority Bar Association of lesbians, gay men, bisexuals, transgendered persons and their supporters, with over 500 members including judges, lawyers, legal workers and law students. It is a helpful resource for information about laws affecting the greater LGBT community.

Human Rights Campaign (HRC) 1640 Rhode Island Ave., NW Washington, DC 20036 (800) 777-4723www.hrc.org HRC is a national organization that works to advance equality based on sexual orientation and gender expression and identity through advocacy and education.

Lambda Legal Western Regional Office 3325 Wilshire Blvd., Suite 1300 Los Angeles, CA 90010 (213) 382-7600www.lambdalegal.org With headquarters in New York City and regional offices in the Midwest, South, South Central and West, Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender persons and persons living with AIDS through litigation, education and public policy work.

National Academy of Elder Law Attorneys 1604 North Country Club Rd. Tuscon, AZ 85716 (520) 881-4005www.naela.org Information on how to choose an elder law attorney and referrals to elder law attorneys.

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